Whether the Department was justified in refusing to grant the applicant's request for correspondence between Ryanair and the Minister for Finance (the Minister) and a particular Assistant Secretary between 1 January and 21 May 2018
28 March 2019
Background
On 22 May 2018, the applicant made an FOI request to the Department for all correspondence between Ryanair and the Minister and a particular Assistant Secretary between 1 January and 21 May 2018.
The Department's decision of 19 June 2018 concerned seven records numbered in its schedule. It refused to grant access to the records under sections 29 (deliberative process), 35 (confidential information), 36 (commercially sensitive information) and 37 (personal information) of the FOI Act. The applicant sought an internal review of the Department's decision on 21 June 2018. The Department's internal review decision of 4 July 2018 affirmed its refusal to grant the request. On 20 July 2018, the applicant sought a review by this Office of the Department's decision.
During the review, the Department identified three further records that are covered by the request. Having re-categorised the 10 records as records A to J, it says that it will grant partial access to one of the additional records (record C) subject to the deletion of personal information. It relies on sections 29, 35 and 36 in refusing to release records D and J.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department, Ryanair and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
Scope of Review
This review is confined to whether the Department was justified in refusing to grant full access to the ten records covered by the applicant's request. Three of them have not been through the formal FOI process. While this Office is an independent reviewer of decisions rather than a first instance decision maker, in the overall circumstances of this case I have decided to include these additional records in my review.
The applicant confirms that he is not seeking any personal information. Accordingly, personal information of Ryanair employees (such as names, email addresses and other contact details) does not fall to be released from any of the records.
Preliminary Matters
It is relevant to note a number of preliminary matters.
Section 11(3) requires FOI bodies, when performing any function under the Act, to "have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs"; to the need "to strengthen the accountability and improve the quality of decision making of public bodies"; and "the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies".
Section 11(7)(b) provides that "[n]othing in this section shall be construed as applying the right of access to an exempt record ... where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release."
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.
It is well settled that mere assertions by an FOI body as to harms that might result from access to a record, are not sufficient for the Commissioner to find that a particular exemption provision applies.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records and certain arguments in some of my analysis and reasoning is limited.
Finally, the Courts have recognised that a decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date.
Section 29
Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.
Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make.
Analysis
It seems to me that certain details about the communications are in the public domain further to an entry made by Ryanair on the Lobbying Register dated 21 May 2018, and also further to various media articles, some of which refer to comments made publicly by the company's CEO.
Furthermore, according to the Irish Times (4 December 2018), Ryanair has commenced a legal action against the Minister for Finance and others regarding tax laws that require airlines to levy income tax on employees who do not live in Ireland. The article refers to Ryanair's reasons for taking the legal action and says that it had "asked the Minister for Finance ... to amend the law ... but has not been successful."
The Department says that the records concern the consideration of this matter and relate to a deliberative process. I accept that the records are of a kind to which section 29(1)(a) can apply.
In relation to section 29(1)(b), the applicant says that fact that the records relate to lobbying strengthens the public interest in favour of at least their partial release. Any public interest cited in favour of granting access to a record must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law (as per the judgment of the Supreme Court issued in July 2011 in the case ofThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner.) The FOI Act itself, including the provisions of section 11(3), recognises a public interest in ensuring that FOI bodies are open about and can be held accountable for how they carry out their functions. Furthermore, it also seems to me that the Regulation of Lobbying Act 2015 represents a true public interest in ensuring openness in relation to lobbying activities. While that Act does not require publication of the details of lobbying contacts, this does not mean that there is no public interest in their disclosure under the FOI Act.
Thus, I consider that there is considerable weight attached to the public interest in having an open and transparent process around public policy formulation and determination and the influence exerted on this through lobbying activities, particularly where the policy matters concern public monies. A further relevant consideration is the fact that Ryanair is a large and powerful organisation. While this public interest has been served to some extent by the information that is already in the public domain, I accept that it would be further served if access were granted to the records.
In order for records to be exempt under section 29(1), granting the request must be contrary to the public interest.
The Department's submission, which was made before Budget 2019, acknowledges that policy decisions should be subject to scrutiny, as well as the requirements of section 11(3)(b) of the FOI Act. In short, it says that disclosure of the records at such a time would be premature and result in various harms (which it describes) that would impair the integrity and viability of the deliberative process. When Budget 2019 was passed by the Oireachtas, this Office asked the Department if it was still relying on section 29. In confirming that it was, it referred to the Finance Bill and suggested that further deliberations could take place.
I accept that section 29 reflects a public interest in ensuring that deliberative processes are not harmed. The fact that Ryanair has since decided to take legal action regarding the Minister's refusal to amend the laws suggests to me that the deliberations have completed. While there may be a possibility that the Minister could yet revise his position, it is not necessarily contrary to the public interest to grant access to records where a deliberative process remains ongoing. The Department's submission does not adequately explain how any deliberative process that might still be ongoing may be harmed by disclosure of the records. For instance, even if public attention is drawn to certain matters, the Department does not explain how this would impact on the deliberative process. Furthermore, it seems to me that the possibility that the records may not represent a complete picture of the deliberative process does not mean that it is contrary to the public interest to grant access to them.
Overall, having considered the above and the clear requirements of section 29(1)(b), I am not satisfied that the grant of access to the records would be contrary to the public interest. I find that section 29(1)(b) does not apply. I should also say that I have no reason to accept that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)).
Section 36
The Department relied on sections 36(1)(a) (trade secrets), (b) (commercially sensitive information) and (c) (information impacting on negotiations) in relation to the records. Ryanair claims that sections 36(1)(b) and (c) apply. I do not intend to consider section 36(1)(a) because any information that would be so exempt would also qualify for exemption under section 36(1)(b).
This Office's approach to sections 36(1)(b) and (c)
Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of
Westwood Club v The Information Commissioner[2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.
Section 36(1)(c) must be applied to "information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates".
The conduct and the outcome of negotiations are separate matters. The standard of proof required to meet this exemption is relatively low, in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
Sections 36(1)(b) and (c)
The applicant is of the view that FOI bodies generally apply section 36 to any information relating to commercial issues. However, the Department explains why it considers section 36 to apply to various details. Generally speaking, it says that placing such information in the public domain (which is the effect of the grant of access to records under FOI) could place Ryanair at a strategic disadvantage to its competitors.
Ryanair's submission explains how various harms (including in relation to its negotiations) could arise from disclosure of confidential information concerning its operations and other matters. It also stresses the current (as opposed to historic) nature of the information concerned. It accepts that there have been media articles containing general information about the underlying subject matter of the records. However, it says that the records under review contain very specific confidential and commercially sensitive information and provide much more details and context than what is already publicly known. It also says that primary documentation such as the records should be distinguished from information that has been published in the media without references to such documentation.
I accept that not all of the details in the records are in the public domain. Having carefully considered the detailed arguments made in the Department's and Ryanair's submissions, which I cannot describe further because of section 25(3), I accept that the records qualify for exemption under sections 36(1)(b) and (c) of the FOI Act.
Exceptions to sections 36(1)(b) and (c)
A record that is exempt under section 36(1) may be released if certain circumstances apply (section 36(2) refers), or if the public interest in favour of its release outweighs the public interest that it be withheld (section 36(3) refers). I do not consider section 36(2) to be relevant in this case.
I have already explained why I consider there to be considerable weight to the public interest in granting access to the records and that, while it has been served to some extent by the information already in the public domain, it would be further served by granting full access to the records.
At the same time, I also recognise that sections 36(1)(b) and (c) themselves reflect public interests in the protection of records containing information that could prejudice a private company's competitive position in the conduct of its business or its negotiations. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny.
I note that Ryanair says that the records should be deemed fully exempt on the basis that the more detailed and sensitive information cannot be untangled from the communications as a whole. I have carefully weighed the competing public interest factors in favour of and against release as well as this Office's general approach to section 18 of the FOI Act. In the particular circumstances of this case I find that, on balance, the public interest weighs in favour of granting partial access to some of the records. It seems to me that the balance of the competing public interests is appropriately struck by directing the Department to grant access to details concerning Ryanair's views on the legislation generally and the desired changes for which it lobbied, and to refuse access to details concerning Ryanair's description of specific impacts of the current laws on its operations and other matters.
Accordingly, I direct the Department towithholdthe following:
- Record A: Letter of 23 January 2018 - section 2 in part (i.e. the third sentence of the first sub-topic to the end of that particular sub-topic) and all of sections 3 and 4. Exhibits 1, 2 and 3 in full.
- Record B: As record A.
- Record D: Letter of 26 January 2018 - final sentence of first paragraph, the five numbered bullet points and the third last sentence on the second page together with attached table.
- Records E, F, G and H: in full.
- Record J: third and fourth paragraphs.
Section 35
I will now consider section 35 in relation to the remaining records or parts of the records. Section 35(1) provides for the mandatory refusal of an FOI request for a record that, generally speaking, contains information given in confidence or contains information subject to a duty of confidence. However, where records are created by an FOI body (such as, in this case, various cover emails sent by the Department and record I), section 35(2) must be considered at the outset. Although the Department says that it took account of the provision, it does not give any details of the consideration it gave to the matter.
Section 35(2)
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."
Ryanair is not an FOI body or service provider. Thus, it is possible for it to be owed a duty of confidence by the Department. Ryanair says that it is owed an equitable duty of confidence (a duty provided for "otherwise by law"). When considering the existence of such a duty of confidence, this Office has regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):
"First, the information itself -¦ must -˜have the necessary quality of confidence about it-™. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
While the disclosure of information without Ryanair's consent is enough for detriment to arise, I do not consider the other two tests to have been met regarding the remaining information. While I accept that the information I have found to be exempt under section 36 has the necessary quality of confidence about it, I do not consider that this can be said of the remaining details. It seems to me that Ryanair itself acknowledges this by saying that the more detailed information cannot be untangled from the communications as a whole for the purposes of granting partial access to the records.
Furthermore, Ryanair says that the information in the records was imparted in circumstances that impose an obligation of confidence on the Department. It says that the findings in this Office's decisions in Case Nos 110023 and 140057 are relevant in this case, and also that the records do not concern tenders or contractors to FOI bodies.
While I accept that Ryanair is not a tenderer or contractor, this does not determine the matter. Furthermore, I do not consider the findings in Case Nos 110023 or 140057 to have any relevance to this review. Case No 110023 concerned information supplied to an FOI body in its capacity as a competent licensing authority. Case No 140057 dealt with access to the names of companies and their representatives consulted with by the Department prior to Budget 2014. Because of the particular circumstances of that case, the decision accepted that the contacts should be seen in a different light to general lobbying. In short, neither case dealt with whether access should be granted to communications regarding a powerful third party's lobbying to have tax laws amended that would have implications for the public purse.
Thus, I do not accept that the remaining details were imparted by Ryanair in circumstances that impose an obligation of confidence on the Department. As I said already, these details concern Ryanair's views on the legislation generally and the changes to the tax laws for which it was lobbying. While the Registration of Lobbying Act 2015 only requires publication of limited details, it seems reasonable to me to take the view that the enactment of both it and the FOI Act signal to the general public that FOI bodies are not necessarily obliged to keep all other details of lobbying attempts confidential.
Because I do not accept that Ryanair is owed a duty of confidence regarding the remaining information in the records created by the Department, they cannot be exempt under section 35(1). For the same reasons, I find that section 35(1)(b) does not apply to the remainder of the records comprising communications sent to the Department by Ryanair.
Section 35(1)(a)
Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:
- given to a public body in confidence and,
- on the understanding that it would be treated by it as confidential and,
- in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
- it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
Both the Department and Ryanair were asked to comment on how the test at the third bullet point above is met in the circumstances.
The Department says that it is in its interests to be aware of all matters that are relevant to financial policy and the State's interests. It also says that any positive impact for Ryanair resulting from the requested changes would apply equally to other airlines.
Ryanair refers to the confidentiality of the information it gave to the Minister to underpin its arguments (which I have found above to be exempt under section 36). It says that, if the records were released, it would not communicate similar information to the Department in future. It says that a taxpayer providing such information must have a reasonable expectation that the information will be treated as confidential because otherwise the taxpayer would be dissuaded from providing such information to the Department in future. It says that it is in the Department's interests to continue to receive such information in order to fully inform any negotiating positions it may adopt in relation to affected tax treaties.
Even if the desired changes may also impact positively on other airlines, it seems to me that it is in Ryanair's interests to provide the Department with all information relevant to its attempts to influence amendments to legislation. On this basis I have no reason to consider that the third test of section 35(1)(a) is met and I find that section 35(1)(a) does not apply to the remainder of the records comprising communications sent to the Department by Ryanair.
Section 31(1)(b)
Ryanair claims that granting access to the records could give rise to a contempt of court because the records are "highly likely to form part of any discovery order made in the proceedings." In this regard, section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court.
Generally speaking, the only exemptions on which third parties can rely are sections 35, 36 and 37. However, section 31(1)(b) is a mandatory exemption and I will consider it here.
Ryanair refers to
McKillen v the Information Commissioner [2016] IEHC 27, particularly Mr Justice Noonan's rejection of an argument that section 31(1)(b) could not apply because the FOI request had been made before the making of an order of discovery. Noonan J. said that "[d]isclosure of documents the subject of an order for discovery, whenever made, is a contempt of court."
A key issue in Case No 130033 which gave rise to the above proceedings was that at the time of this Office's review an order for discovery had in fact been made. Neither Ryanair nor the Department have told this Office that orders of discovery have been made in this case. I do not accept that it is a contempt of court to direct that access be granted to records under FOI on the basis that they might subsequently become subject to a discovery order.
I should also make it clear that when the Department brought Ryanair's legal action to attention, the Investigator asked whether it wished to make arguments regarding any further exemptions. The Department did not reply.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision to refuse access to records A to J. I direct the Department to grant partial access to the records subject to the redaction of personal information as excluded by the applicant and the following details which I find to be exempt under sections 36(1)(b) and (c) of the FOI Act:
- Record A: Letter of 23 January 2018 - section 2 in part (i.e. the third sentence of the first sub-topic to the end of that particular sub-topic) and all of sections 3 and 4. Exhibits 1, 2 and 3 in full.
- Record B: As record A.
- Record D: Letter of 26 January 2018 - final sentence of first paragraph, the five numbered bullet points and the third last sentence on the second page together with attached table.
- Records E, F, G and H: in full.
- Record J: third and fourth paragraphs.
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Elizabeth Dolan
Senior Investigator
